Lundy v. Hazen

• Decision Date: 03 February 1966
• Docket Number: No. 9660,9660
• Parties: Arch LUNDY and Esther Lundy, husband and wife, personally, and Esther Lundy, as Guardian ad litem for Franklin Lundy, a minor, Plaintiffs-Appellants, v. J. W. HAZEN, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 768

411 P.2d 768

90 Idaho 323

Arch LUNDY and Esther Lundy, husband and wife, personally, and Esther Lundy, as Guardian ad litem for Franklin Lundy, a minor, Plaintiffs-Appellants, v. J. W. HAZEN, Defendant-Respondent.

No. 9660.

Supreme Court of Idaho.

Feb. 3, 1966.

Rehearing Denied March 21, 1966.

Rayborn, Rayborn & Rayborn, Twin Falls, for appellants.

Kramer, Walker, Pope & Plankey, Twin Falls, for respondent.

SMITH, Justice.

This is an appeal from a summary judgment dismissing an action brought by appellants against respondent for recovery of damages which Franklin Lundy, a minor, sustained June 27, 1963, on account of personal injuries, together with medical and hospital expenses. The boy was playing with a. 22 caliber cylinder type pistol loaded with a single shell, when the pistol discharged, the bullet wounding him in the face with resultant residual scars.

Appellants, at the time of the accident, maintained their home in Kimberly, Idaho, with their two children, Franklin, 13 years old, and Julie, 15 years old. Appellant Arch Lundy was a forest service employee. The parents, on June 1st, moved to a ranger station about 31 miles distant from Kimberly. Mrs. Lundy traveled back and forth from the station to the home sometimes 3 or 4 times a week, returning to the station at night. The children worked in the beet fields. Mrs. Lundy kept in close touch with the children both personally and by telephone.

For sometime prior to the accident Franklin had in his possession a. 22 rifle loaned to him by a relative. Esther Lundy, in her deposition, stated that the boy was allowed to go hunting with the rifle and was permitted to purchase ammunition for it. He had had instruction in the use of the gun. Mrs. Lundy considered him to be a careful boy.

On June 27, 1963, Franklin, accompanied by his sister, went to a sporting goods store in Twin Falls, owned by respondent, for the purpose of buying a pistol with moneys he had earned. The sister advised her brother to consult his father before purchasing the gun. Respondent, without requesting written parental consent, sold the pistol to Franklin. His parents had not given their consent, either orally or in writing, to the purchase, although the boy's mother knew of the boy's desire to acquire the pistol.

The evening of June 27th, Julie telephoned her mother. Mrs. Lundy, in her deposition, stated that during the conversation, she first learned about her son's purchase of the pistol. Earlier that day, when she visited the children at the home, Franklin told his mother of his desire to obtain the pistol. Mrs. Lundy then stated, 'I asked him not to, to talk to his dad first, and he said, well, he had the money, and I excused it at that, because I figured the man wouldn't sell it to him because he wasn't old enough.' She then stated that she did not tell Julie, the daughter, to take the pistol away from Franklin, but consented to the boy keeping it 'for the time being,' because she 'figured he would handle it with care and keep it put up.' She didn't remember whether she told her husband that Franklin had the pistol; later she stated that on June 28, 1963, after the accident, she told the boy's father that the boy had purchased the gun. The father, Arch Lundy, in his deposition, stated that the pistol was bought without his consent or knowledge.

The afternoon of June 28, 1963, after purchasing ammunition, Franklin returned home; after 'restacking' the ammunition in its box, he had one cartridge left over which he inserted in the pistol. Later, he was 'playing' with the pistol, snapping its hammer and trigger mechanism; the cartridge discharged and the bullet caused the boy to suffer sundry wounds in his face, neck and mouth.

Esther Lundy, in answer to an interrogatory, stated that on the evening the gun was purchased, the automobile which she used in going to and from the ranger station and her home was not capable of making the trip.

The trial court, upon hearing respondent's motion for summary judgment, dismissed the action, and from the resulting judgment appellants have appealed.

The trial court, when confronted by a motion for summary judgment, must determine if there are any genuine issues of material fact which should be resolved by the trier of the facts. I.R.C.P. 56(c); Otts v. Brought, 89 Idaho --, 409 P.2d 95 (1965). A motion for summary judgment must be denied if the evidence is such that conflicting inferences can be drawn therefrom and if reasonable men might reach different conclusions. Otts v. Brought, supra. All doubts and all favorable inferences which may reasonably be drawn from the evidence will be resolved against the party moving for summary judgment. Otts v. Brough, supra.

Questions of negligence, proximate cause, intervening cause, and foreseeability are generally regarded as questions of fact for determination by the jury unless the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances in only one way. Walenta v. Marks Means Co., 87 Idaho 543, 394 P.2d 329 (1964); Anderson v. Blackfoot Livestock Commission Co., 85 Idaho 64, 375 P.2d 704 (1962); Hoffman v. Barker, 79 Idaho 339, 317 P.2d 335 (1957).

Appellants assign as error the granting of the summary judgment; they contend that the pleadings, depositions and affidavits show genuine issues of material fact which warranted determination by a trier of the facts.

Appellants contend that respondent's act of selling the pistol to Franklin Lundy, a minor under the age of 16 years, without the child having presented the written consent of his parents to the purchase of the gun, was in violation of I.C. § 18-3308, and that such act was the proximate cause of the child's injury. I.C. § 18-3308, reads in part as follows:

'No person, firm, association or corporation shall sell or give to any minor under the age of sixteen years * * * any firearms of any description, without the written consent of the parents or guardian of such minor first had and obtained. Any person, firm, association or corporation violating any of the provisions of this section shall be deemed guilty of a misdemeanor, * * *'

In Bale v. Perryman, 85 Idaho 435, 380 P.2d 501 (1963), this Court ruled:

'* * * this Court has repeatedly held that for one to violate a positive statutory inhibition is negligence per se * * *. Brixey v. Craig, 49 Idaho 319, 288 P. 162; State ex rel. McKinney v. Richardson, 76 Idaho 9, 277 P.2d 272; Ineas v. Union Pac. R. Co., 72 Idaho 390, 241 P.2d 1178. In 65 C.J.S. Negligence § 19c, p. 418, the general rule is stated as: The generally accepted view is that violation of a statutory duty constitutes negligence, negligence as a matter of law, or, according to the decisions on the question, negligence per se, for the reason that nonobservance of what the legislature has prescribed as a suitable precaution is failure to observe that care which an ordinarily prudent man would observe, and, when the state regards certain acts as so liable to injure others as to justify their absolute prohibition, doing the forbidden act is a breach of duty with respect to those who may be injured thereby; or, as it has been otherwise expressed, when the standard of care is fixed by law, failure to conform to such standard is negligence. * * *' 85 Idaho at 440, 380 P.2d at 503. $I.C. § 18-3308 enunciates a positive prohibition of the act committed by respondent, i. e., the sale of a firearm to Franklin Lundy, a minor then of the age of 13 years, without the written consent of his parents.

Carron v. Guido, 54 Idaho 494, 33 P.2d 345, (1934).

Respondent, while admitting that violation of I.C. § 18-3308 constitutes negligence per se, nevertheless contends that no liability attaches to the seller of the firearm unless the illegal sale is the proximate cause of the injury.

While the act complained of is negligence per se, that alone is not sufficient to render respondent liable. For one to be liable for his negligent act, it must be shown that the act was the proximate cause of the injury. Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964); Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960); Clark v. Chrishop, 72 Idaho 340, 241 P.2d 171 (1952); Carron v. Guido, supra.

In Chatterton v. Pocatello Post, 70 Idaho 480, at 484, 223 P.2d 389 at 391, 20 A.L.R.2d 783 (1950), this court stated:

'The breach of duty to be actionable must be the proximate cause of the injury complained of, that is, the cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the result, and without which the result would not have occurred.'

Respondent asserts however, that the minor's mother acquiesced in and consented to her son's possession of the pistol and thereby she assumed control over its use prior to the injury, thereby constituting an independent intervening cause sufficient of itself to be the proximate cause of the injury; that from the point of assumption of parental consent, the seller's negligence no longer was the proximate cause of the injury.

Respondent shows that appellant Esther Lundy had notice or knowledge of the fact that Franklin had purchased the pistol, and asserts that by not ordering it taken away from her son, she consented to his possession of the same; that such parental consent and failure to take steps to have the gun taken from Franklin, constituted an intervening or superseding cause of the boy's injury, which relieved respondent of liability for harm resulting from the sale of the firearm.

In Smith v. Sharp, supra, this Court, quoting from Restatement, Torts, adopted the definition of an efficient, intervening cause or superseding cause, comment thereon, and considerations to be regarded in determining whether an intervening force is a superseding cause of the injury. We quote almost identical language from 2 Restatement, Torts 2d, as follows:

'A superseding cause...